Wangguan China lawfare

Wang Guan: Well Peter, if we forget about western mainstream press for a moment and look at UNCLOS chapter for chapter, we can see that this case, in this essence, it’s about a court that ruled on something it has no jurisdiction to rule on, base on a geo-politicized lawsuit filed by the Philippines against China. I will explain exactly what I mean. In Part 15, Section 3 and Article 298 of UNCLOS, it says a court can not have jurisdiction to rule on sovereignty. And did the court in the Hague rule on sovereignty? Well, in letter it did not but in spirit it did. Let’s look at it, it ruled on nine-dash line, it claim by Beijing that it has some specific controls of this islands and their associated territorial waters. When you delegitimize that line, you delegitimize the sovereignty. SO it is about sovereignty, Also it ruled on the land features, whether they are rocks or islands. Well, despite the fact that in Taiping Island and Yongxing Island, we have restaurants, banks, even internet WiFi and cellphone LTE signals, the court ruled that they are not islands, so they can not confer 12-nautical mile territorial water. It it about territory. And eventually, also it ruled that China’s land reclamation is illegal, which had something to do with territory and sovereignty. So the court, in a nutshell, ruled on sovereignty in the disguise of ruling on other things which violated the spirit, if not text, of UNCLOS. And if I may add, article 295 of UNCLOS said parties to a dispute should exhaust “local remedies”, meaning bilateral negotiations, before a party goes to the court and the Philippines did not do that.

Daniel: We can talk about wordsmithing all we want. At the end of the day, what’s happening is China is claiming sovereignty over an enormous swaths of the South China Sea, and no one but China agrees with it. It would be a bit like any other country saying you know, I just like those bits of water and those islands and I think I will claim them for myself. In terms of seeking local remedies, well, many of the countries that are also party to this issue have sought local remedy with China, but China has not been very forthcoming in that regard. I think it is a testament to the power of international law that small countries like the Philippines can take on the Goliath like China, in this manner and prevail. Now the court ruled the way that it did not because it’s David against Goliath, the court ruled because it took a very close look at the issues and it said this is unreasonable and it does not stand and no one besides China agrees(with its own versions of reality)

Wang Guan: In fact, no western country supported China’s point of view. There are dozens of countries that supported China across the middle east, Africa and Eastern Europe. Those countries support China, because they are not sold with the western narrative of the issue. Western narrative of the issue is very interesting, in that they framed the issue very simplistically,
as if the Philippones 1 China 0 and China is not willing to abide by international law. But I am not sure how many western editors and reporters read UNCLOS chapter for chapter or word for word, and then if they did, they would question the premise of their argument. That is, whether or not the arbitration court, the PCA, has the jurisdiction to, indirectly, rule on sovereignty in the first place. Also I am not sure how many western editors and reporters really talked to legal scholars or quoted them from the other side. Those scholars would point out that many legal principles actually supported Beijing’s point of view, such as Estoppel. Meaning if a country like Vietnam did in the 70s, once recognized China’s claim, as their Prime Minister Pham Van Dong did, they are not supposed to recant or withdraw their arguments decades later. We don’t see that in the western press. Also the western press framed the issue without context, you know, as if China atarted sands and gravels in the middle of the ocean out of nowhere. They forgot the simple fact their own presidents, Franklin Roosevelt and Dwight Eisenhower once sent naval vessels to help China reclaim those islands after WWII and once tacitly recognized China’s claims. We don’t see any of that. So yes the western press are relatively free but free press have biases. I mean, yes they attribute each and every one of their sources. But who are their sources? How many non-western sources do they take seriously? And yes, they attribute each and every one of their adjectives, but how about their carefully-crafted nouns, such as Communist China or legally-binding arbitraton. Those nouns really reinforce and feed into the stereotypes of the western audience.

Daniel: Well I’d like to ask Wang to respond to a couple of issues. One is there are a number of instances where China has basically joined a legal regime UNCLOS being one of them and it has signed on the very day in 1982, when it become a legal instrument. And yet there’s been numerous instances where China has said you know I don’t actually like that portion of the law, I don’t that ruling. So I am not gonna abide by it. So I would ask what is the point of signing on to tha law, if you don’t intend to abide by it when it doesn’t go the way you want it to go. That’s one issue.

Wang Guan: Well, Daniel, there is such a thing as reservations to a treaty.

Daniel: Let me just finish my point. Yes but you are not even showing up at this party. You are not even party to this particular issue in this court. The other issue is exclusive economic zones. That is supposed to go out 200 nautical miles. The Scarborough Shoal, the Mischief Reef, they are 120 miles from the Philippine coast, the closest of any of these islands in the South China Sea to China is almost 300 miles. The Paracel island from the Hainan island in the South. So none of these are within China’s exclusive economic zone. Yes Mischief Reef and Scarborough Shoal are clearly in Philippines’ exclusive economic zone. It doesn’t seem to matter to China. But if this was done to China and the roles were reversed, I can imagine they wouldn’t be very happy.

Wang Guan: Well, Daniel, if geographical proximity is the rule, think about Northern Mariana Islands or Guam. They are a little closer to countries in the western Pacific than to continental United States. Also when you raised the point of why China did not attend this arbitration, it’s because there is such a thing in international law called reservations. There are reservations to treaties. China, along with some 30 other western countries, Denmark, Argentina, the UK, signed this reservation saying that it does not allow the court to rule on sovereignty. That’s why China did not attend the arbitration in the first place. China is hardly the first country to do that. It has companies in the west.

Daniel: And unfortunately, for China, China is not gonna look very good. Because it’s gonna be perceived as thumbing its nose at international law. I would add one last thing, which is, if this ruling had come out in favor of China. I suspect that the government would be praising it and praising the body and all of its wisdom, instead of criticizing it outright and just sort of mor or less acting like an intransigent child.

Wang Guan: When Vietnam built the first airtrip in the Spratly Islands in 1976, Washington wasn’t too eager to jump to criticism of Vietnam. When the Philippines did it two years later by reclaiming come islands in the Spratleys, Washington didn’t jump to criticism of the Philippines, and also when the Philippines grounded an old naval vessel in the Second Thomas Shoal or Ren’ai Jiao, Washington again did not jump to criticism of its ally the Philippines. President Obama even explicitly admitted the containment strategies(of China) in an interview with the Atlantic this April. He said and I quote, word for word, “if you look at how we’ve operated in the South China Sea, we have been able to mobilize most of Asia to isolate China in ways that have surprised China, and frankly have very much served our interest in strengthening our alliances.” So in using politics military deployment and international law, those issues. If those are not ganging up against China, I don’t know what it.

Daniel: It is really not about the US though. This is really ultimately about what kind of country China wants to be perceived as, what kind of global leader it wants to be perceived as in the global community. And the idea of unilateally taking action and calling it a fait accompli is inconsistent with being a top leader at the table. To unilaterally go and to create a de facto military base and claim it as your own, and say what are you objecting to, that doesn’t really make any sense.

Wang Guan: The U.S really needs a new strategic posture on China. Because they use excuses such as protecting the sea lanes and trade, but if youo look at those facts, China and the ASEAN countries traded quite alright. As the largest trading nation in the world, 5 trillion dollar’s worth of trade going through South China Sea every year. And also if Asia Pivot is about security issue, what exactly are those security issues? On North Korea, I mean North Korea has not been able to pull off a real exsitential threat. On terrorism, ISIS and the Taliban are half a world away. If on non-proliferation, most of the nuclear warheads…